City of Cleveland v. Whipkey

• Decision Date: 27 January 1972
• Docket Number: No. 30281,30281
• Citation: 29 Ohio App.2d 79,278 N.E.2d 374
• Parties: , 58 O.O.2d 86 CITY OF CLEVELAND, Appellee, v. Ronald P. WHIPKEY, Appellant.
• Court: Ohio Court of Appeals

Page 79

29 Ohio App.2d 79

278 N.E.2d 374, 58 O.O.2d 86

CITY OF CLEVELAND, Appellee, v. Ronald P. WHIPKEY, Appellant.

No. 30281.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 27, 1972.

Syllabus by the Court

1. Under the Fifth and Sixth Amendments of the United States Constitution a defendant in a misdemeanor case is entitled to be advised of his rights and privileges, including the privilege against self-incrimination, right to a trial by jury in all but petty crimes, right to be informed of the nature of the charge against him, right to confront witnesses against him and the right to the assistance of counsel for his defense.

2. A defendant who enters a plea of guilty in a misdemeanor case simultaneously waives several federal constitutional rights including, but not limited to, his privilege against self-incrimination, his right to a trial by jury in all but petty crimes, his right to be informed of the nature of the charge against him, his right to confront witnesses against him, and the right to assistance of counsel for his defense. The waiver must be voluntarily, intelligently and knowingly made and the defendant must understand the nature of the charges against him and the consequences of his plea of guilty. A waiver of the foregoing constitutional rights must affirmatively appear in the record, otherwise, a judgment of conviction based upon a guilty plea is unconstitutional and the accused is entitled to relief therefrom. A waiver of constitutional rights in a misdemeanor case will not be presumed from a silent record.

3. The provisions of R.C. §§ 2937.02-2937.07 are mandatory and must be followed before a judge accepts a guilty plea of an accused in a misdemeanor case. Failure of the judge of comply with the provisions of R.C. §§ 2937.02-2937.07 invalidates a plea of guilty to a misdemeanor.

4. It will not be presumed from a silent record that the mandatory proceedings required by R.C. §§ 2937.02-2937.07, were followed by the trial judge. Failure of the transcript of proceedings to show compliance with the mandatory statutory requirements as to the pretrial procedure of Chapter 2937 invalidates the entire proceedings and a judgment based on a guilty plea will be reversed by the reviewing court.

Clarence L. James, Jr., Cleveland, Law Director, and Everett A. Chandler, Police Prosecutor, for appellee.

Gill, Keenan & Corrigan, Cleveland, for appellant.

KRENZLER, Judge:

This is an appeal from the Cleveland Municipal Court (Traffic Division).

Defendant appellant, Ronald P. Whipkey, hereinafter referred to as defendant, was arrested on July 30, 1969, at 1:25 a.m., and was issued a uniform traffic ticket for racing an automobile at speeds up to 60 miles per hour, in violation of Ordinance 9.1311 of the City of Cleveland. ¹

Defendant appeared in Cleveland Municipal Traffic Court on July 30, 1969, at 9:00 a.m. He plead guilty, was fined $75.00 and costs, and his driver's license was suspended for 30 days.

On August 4, 1969, defendant filed a motion to vacate judgment and to grant a new trial, which motion was overruled on September 12, 1969.

On September 22, 1969, a notice of appeal was filed in this court.

It is noted that defendant was not represented by counsel at the time he entered his plea of guilty and the record is silent as to whether the trial judge gave any explanation to the defendant of his constitutional or statutory rights before he accepted the plea of guilty.

The record before this court contains only the affidavit and uniform traffic ticket and the docket of the journal entries. There is no bill of exceptions or transcript of proceedings either in verbatim or narrative form.

Defendant contends that he did not understand the nature and consequences of his plea of guilty, and has assigned as error that the trial court abused its discretion in not vacating the guilty plea and in not granting a new trial.

In order to decide the issues in this case we must determine whether any of the defendant's federal constitutional rights were violated and/or whether the trial court complied with the mandatory provisions of R.C. §§ 2937.02-2937.07.

The issues involved in this appeal are:

1. Do the federal rights and privileges contained in the Fifth and Sixth Amendments of the United States Constitution apply in state misdemeanor prosecutions?

2. Will a guilty plea to a misdemeanor be presumed valid under federal constitutional standards when there is no transcript of proceedings (silent record)?

3. Will the judge's failure to comply with the provisions of R.C. §§ 2937.02-2937.07 invalidate a plea of guilty?

4. Will the trial judge be presumed to have complied with R.C. §§ 2937.02-2937.07 absent an affirmative showing of compliance in the record?

We will first decide whether any of the defendant's federal constitutional rights have been violated.

The Fifth and Sixth Amendments of the United States Constitution guarantee an accused the privilege against self-incrimination, the right to a trial by jury, the right to assistance of counsel, the right to confront witnesses against him and the right to be informed of the nature and cause of the accusation.

Federal constitutional rights enumerated in the Fifth and Sixth Amendments have been held applicable to state court proceedings by virtue of the Fourteenth Amendment, as follows:

1. Right to counsel. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Chandler v. Fretag (1954), 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed.2d 4; Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

2. Right to a trial by jury. Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. This right is not extended to prosecutions for petty crimes. Duncan v. Louisiana, supra, and Dyke v. Taylor Implement Mfg. Co. (1968), 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538. A six-month sentence was considerd petty. Baldwin v. New York (1970), 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437; Bloom v. Illinois (1968), 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522; Cheff v. Schnackenberg (1966), 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629.

3. Right to confront one's accusers. Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

4. Privilege against self-incrimination. Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.

An accused's constitutional rights apply whether he is tried or enters a plea of guilty. A denial of any of the foregoing constitutional rights would constitute prejudicial error and invalidate a conviction in a trial or a plea of guilty.

Any or all of the foregoing rights and privileges can be waived by a defendant. A defendant who enters a plea of guilty simultaneously waives several constitutional rights including, but not limited to, his privilege against self-incrimination, his right to a trial by jury, his right to confront his accusers and his right to counsel. McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

For a waiver of constitutional rights to be valid under the due process clause there must be an intentional relinquishment or abandonment of a known right or privilege. The waiver must be voluntarily, intelligently and knowingly made and the defendant must understand the nature of the charges against him and the consequences of his plea of guilty. Otherwise, it is in violation of due process and is therefore void. The court has a duty to advise the defendant of his constitutional rights and must make sure that he knowingly, intentionally and voluntarily waives his constitutional rights before it accepts the plea of guilty. This protective duty imposes the serious and weighty responsibility on the trial judge of determining whether there was an intelligent and understanding waiver by the accused. While accused persons may waive their constitutional rights the question of whether there is a proper waiver should be clearly determined by the trial courts, and it would be fitting and appropriate for the determination to appear affirmatively in the record. Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights. The record must disclose that the defendant voluntarily and understandingly entered a guilty plea. There must be an allegation or showing of affirmative waivers of constitutional rights, otherwise, a judgment of conviction based upon a guilty plea is unconstitutional and the accused is entitled to relief therefrom. A waiver of constitutional rights will not be presumed from a silent record. See Boykin v. Alabama, supra; McCarthy v. United States, supra; Gideon v. Wainwright, supra; Carnley v. Cochran (1962), 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

We must now decide whether the federal constitutional rights and privileges contained in the Fifth and Sixth Amendments apply to misdemeanors.

The Supreme Court of the United States has not ruled on this issue. All of the foregoing cases deciding federal constitutional issues involved felonies and not misdemeanors. The Supreme Court, however, did not limit its decisions to felonies nor did it include or exclude misdemeanors. The court only made flat assertions that these rights and privileges applied to criminal cases.

Academically, and based on sound legal reasoning, these same rules should apply to misdemeanors as well as felonies. Valid reasons have not been presented why the Supreme Court rules regarding waivers of constitutional rights should not apply to misdemeanors as well as to felonies. The labels of 'misdemeanor' and 'felony' should not control whether a defendant is entitled to all of his constitutional rights.

There are however, two areas of limitation. The right to a trial by jury, as noted above, applies to all...